The opinion of the court was delivered by: RICHEY
In its Memorandum Opinion and Order of May 2, 1977 this Court denied defendants' and defendant-intervenors' motions to dismiss. 431 F. Supp. 722 (D.D.C.1977). In denying these motions, this Court held that section 102(2)(C) of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C), requires the Corps of Engineers to submit an environmental impact statement (EIS) to Congress with its proposal for authorizing legislation for the construction of a replacement Lock and Dam 26. The Court further held that plaintiffs herein had a right of action and standing to challenge the adequacy of the EIS that defendants had prepared. Finally, the Court held that plaintiffs' claim for declaratory relief as to the adequacy of the present EIS was sufficient to render the case justiciable.
After the motions to dismiss were denied, the parties filed a series of briefs with respect to plaintiffs' then-pending motion for summary judgment. These briefs were quickly followed by an interim skirmish, a series of pleadings, and ultimately a hearing on the question of whether there Remained before Congress a "proposal for legislation" by the Executive Branch with respect to Lock and Dam 26 at Alton, Illinois. On November 29, 1977, this Court concluded that such a proposal for legislation indeed remained before Congress and, accordingly, the Court directed the parties to focus once again on the plaintiffs' pending motion for summary judgment. Thereafter, the parties filed a second series of briefs on plaintiffs' motion for summary judgment and defendants and defendant-intervenors filed cross-motions for summary judgment. On June 2, 1978, the parties presented oral arguments on the pending summary judgment motions. The case is now before the Court on these cross-motions for Summary judgment.
Plaintiffs' motion for summary judgment seeks a declaratory judgment that the Final EIS prepared by the Corps of Engineers to accompany the proposed authorizing legislation for Lock and Dam 26 is Inadequate and fails to comply with the NEPA's requirements. Plaintiffs' motion also seeks a declaratory judgment that the Corps' decision to propose the authorizing legislation here in issue was arbitrary and capricious in light of the true costs and benefits of the proposed project. For the reasons hereinafter stated, the Court concludes that it Cannot presently Grant any of the pending motions for summary judgment with respect to the Adequacy of the present EIS. However, the Court will Grant defendants' and defendant-intervenors' motion for summary judgment with respect to plaintiffs' claim that the Corps' decision to propose authorizing legislation was Arbitrary and capricious.
I. The Adequacy of the EIS Now Before Congress
As this Court stated in its 1977 opinion in this case, the question of whether the Adequacy of an EIS for a legislative proposal can be reviewed by a court before Congress has acted on the proposal was an issue of first impression. Thus, in deciding whether the present EIS is adequate, the Court is without the guidance of other cases in which the adequacy of legislative proposal impact statements have been challenged. Assuming, without deciding, that the same standards for adequacy under NEPA govern legislative proposal EIS's as govern run-of-the-mill "Federal Action" EIS's, the Court concludes that material facts are presently in dispute that preclude the Court from granting any of the pending motions for summary judgment.
Plaintiffs' primary challenges to the present EIS are four: (1) the absence of programmatic/systemic analysis of the cumulative environmental impacts of the series of locks and dams and the navigation channel beginning at Alton and running upstream on the Illinois River; (2) the allegedly erroneous and unsupported calculation of benefits attributable to the proposed Lock and Dam 26 replacement; (3) the allegedly erroneous and unsupported projection of traffic increases and the absence of discussion of the attendant environmental impacts of such increases;
and (4) the allegedly insubstantial discussion of alternatives to the proposed project. At least with respect to the first three of these challenges, it appears that there are material issues of fact that are presently in dispute.
A. The Programmatic Issue
With respect to the absence of programmatic/systemic analysis, there appear to be a number of threshold factual issues that are now in dispute. The Court recognizes, as do the parties, that the parameters of defendants' programmatic duties are defined in significant part by the Supreme Court's 1976 decision in Kleppe v. Sierra Club, 427 U.S. 390, 96 S. Ct. 2718, 49 L. Ed. 2d 576. In that decision, the Supreme Court held that "comprehensive" or programmatic impact statements, while undeniably appropriate in certain situations, do not necessarily have to analyze the environmental impacts of related projects that are merely "contemplated" rather than "proposed." 427 U.S. at 410 & n.20, 96 S. Ct. 2718, 49 L. Ed. 2d 576. The Court did not, however, explicate when during the course of the development of plans for Federal action an agency's planning becomes a "proposal" as distinguished from a contemplated action. See CEQ, Memorandum on "Kleppe v. Sierra Club" and "Flint Ridge Development Co. v. Scenic Rivers Assn. of Oklahoma," (Sept. 16, 1977), Reprinted in 42 Fed.Reg. 61,069, at 61,071 (Dec. 1, 1977); Note, Program Environmental Impact Statements: Review and Remedies, 75 Mich.L.Rev. 107, 117-18 (1976); Note, The Scope of the Program EIS Requirement: The Need for a Coherent Judicial Approach, 30 Stan.L.Rev. 767, 790 n.117 (1978).
It appears to the Court that the parties presently dispute whether a series of locks and dams on the Illinois River and the so-called Cal-Sag III project are presently "proposed." The parties also appear to be in sharp disagreement as to whether a twelve-foot navigation channel is "proposed" for the Upper Mississippi and Illinois Rivers. Under Kleppe, the threshold determination that must be made is whether these projects are "proposed," and, while the determination may be a combined question of fact and law, the Court cannot make an appropriate determination in the absence of an adequate factual predicate. Since the present record before the Court does not contain sufficient undisputed facts to constitute an adequate factual predicate, and since the parties disagree on the ultimate characterization of the aforesaid projects, it appears that summary judgment is inappropriate on the question of whether defendants acted arbitrarily in excluding programmatic/systemic analysis from the present EIS. Even if the parties were to stipulate that the forestated projects were "proposals," summary judgment would still be inappropriate at this time on the programmatic issue in view of the apparent disputes between the parties on such threshold facts as the degree of interdependence of Lock and Dam 26 with the aforestated projects, the extent to which the several projects will have cumulative or synergistic effects, and the feasibility of meaningful programmatic analysis. See Kleppe v. Sierra Club, 427 U.S. at 411, 96 S. Ct. 2718, 49 L. Ed. 2d 576; CEQ Memorandum, Supra, 42 Fed.Reg. at 61,071.
B. The Calculation of Benefits and the Projection of Traffic Increases Issues
C. The Alternatives Issue
It does not appear to the Court that there presently exist disputes of material fact that are unique to plaintiffs' challenge to the adequacy of the EIS's discussion of alternatives. (This does not mean that no material facts are in fact disputed.) However, it appears to the Court that the adequacy of the Corps' discussion of alternatives cannot be adjudged until the programmatic issues are resolved. It is for this ...